S.A. v. M.A.

• Decision Date: 06 October 1987
• Docket Number: No. 86-327.,86-327.
• Citation: 531 A.2d 1246
• Parties: S.A., Appellant, v. M.A., Appellee.
• Court: D.C. Court of Appeals

531 A.2d 1246

S.A., Appellant, v. M.A., Appellee.

No. 86-327.

District of Columbia Court of Appeals.

Argued June 2, 1987.

Decided October 6, 1987.

Judith L. Gorfkle, Washington, D.C., for appellant. Robert A. Johnson, Washington, D.C., also entered an appearance for appellant.

Jane Moretz Edmisten, Washington, D.C., for appellee.

Before PRYOR, Chief Judge, and MACK and STEADMAN, Associate Judges.

MACK, Associate Judge:

Appellant/husband seeks review of a December 12, 1985 order of the Family Division of the Superior Court. In that order, the trial court (1) found that appellant was the natural father of the third and last child born of appellee/wife; (2) ordered appellant to make contributions of $779 per month for the support of his three children; and (3) declared appellant current on all payments due under previous child support orders of the Superior Court. Appellant raises several arguments on appeal. First, he contends that the finding of paternity was clearly erroneous and that the court abused its discretion in refusing to order a Human Leukocyte Antigen (HLA) test. Second, he argues that the level of support contributions he was ordered to pay is based on a clearly erroneous determination of his ability to pay and a commensurate erroneous determination of his wife's inability. And finally, he contends that the issue of arrearages from prior support orders was not properly before the court, and, in any event, the court's failure to award him a credit for past overpayments was clearly erroneous. Finding no error, we affirm.

I.

Appellant and appellee were married on October 1, 1971, in Washington, D.C. On or about March 31, 1974, the parties separated, but continued to engage in intermittent conjugal relations at least every two months through January, 1985. They were not divorced as of the date of the November 19, 1985 hearing in this matter.

Three children were born of this marriage: B., S., and N. Appellant acknowledges parentage of B. and S., but denies he is N.'s father. N. was born on August 10, 1979, and appellant concedes that he and his wife engaged in conjugal relations during the first week in November, 1978—the presumptive period of conception.

In 1974, after the parties' separation but at a time when only two children were born, the court ordered respondent to pay $90, bi-weekly, and $118 of his Veteran's Administration benefits, monthly, for the support and maintenance of appellee and the two children. In May, 1985, appellant requested a financial review before a hearing commissioner to clarify the status of his support payments. Appellee, in response, moved for an increase in support. On June 19, 1985, the commissioner entered a pendente lite order in which appellant agreed to pay, and appellee agreed to accept, $500 per month in support of the two older children. During the pendente lite hearing, appellant first denied his paternity of N.

Following unsuccessful negotiations on the issues of arrearages, support payments, and paternity, a hearing was held on November 19 and 20, 1985. Before the court were the parties' joint motions to determine arrears, appellant's motion to decrease child support, and appellee's motion to increase child support. Early in the first day of the proceedings, the court determined that the paternity of N. was not in issue since appellee never amended her petition to request support for N. On the second day, however, the court reversed itself and determined that the adjudication of paternity in a separate proceeding would be inappropriate and inefficient. Appellant consented to the court's request to place paternity in issue. The resultant order is the subject of this appeal.¹

II. PATERNITY

The trial court explicitly found that appellant was the "natural father" of N. Of course, we recognize that the paternity of a child is a question of fact peculiarly within the province of the factfinder. Minor v. District of Columbia, 241 A.2d 196, 196 (D.C. 1968); Hawkins v. District of Columbia, 203 A.2d 116, 116-17 (D.C. 1964). Unless a trial court's finding of paternity is "clearly erroneous," or otherwise not in accordance with the law, Super.Ct.Dom. Rel.R. 52(a); see Ashley v. Ashley, 179 A.2d 905, 906 (D.C. 1962), we are not in a position to disturb the trial court's ruling. Here, the trial court's finding of paternity is neither clearly erroneous nor otherwise contrary to law.

A.

The starting point for the trial court's analysis and for our analysis is the recognition of the fact of marriage between the two parties at the time of the conception and birth of N. Thus, while a woman has the burden of proving a man's paternity by a preponderance of the evidence, Johnson v. District of Columbia, 271 A.2d 563, 564 (D.C. 1970); see Rivera v. Minnich, ___ U.S. ___, 107 S.Ct. 3001, 97 L.Ed.2d 473 (1987) ("preponderance of the evidence" standard in paternity suits does not violate putative father's due process rights), a child's birth during the marriage of a woman and a man raises a statutory presumption that the husband is the father. D.C.Code § 16-909(a)(1) (1981).

The importance of this statutory presumption is highlighted by reference to the common law: "The presumption of legitimacy of a child born in wedlock has always been considered one of the strongest known to the law." Peters v. District of Columbia, 84 A.2d 115, 118 (D.C. 1951); see S. GREEN & J. LONG, MARRIAGE AND FAMILY LAW AGREEMENTS § 5.22 (1984). Of course, contrary to old common law principles, the "legitimacy" of a child no longer depends upon the marital status of the parents. "The term `legitimate' or `legitimated' means that the parent-child relationship exists for all rights, privileges, duties, and obligations." D.C.Code § 16-907(a) (1981). "A child born in wedlock or born out of wedlock is the legitimate child of its father and mother. . . ." Id. § 16-908. Nevertheless, the state and its children retain a strong interest in maintaining the presumption of the parent-child relationship of a child born in wedlock.²

Given the strong interests in the preservation of the parent-child relationship, the presumption of husband's paternity of a child born in wedlock was formerly irrebuttable. Peters, supra, 84 A.2d at 118; see Retzer v. Retzer, 161 A.2d 469, 470 (D.C. 1960). In view of the harshness of such a rule, however, the presumption is clearly now rebuttable. Harrington v. Harrington, 145 A.2d 121, 122 (D.C. 1958); Peters, supra, 84 A.2d at 118. As one court has aptly noted, the practical effect of the "rebuttable presumption" rule in marital contexts, "is to place the burden of proving nonpaternity on the putative father." In re Marriage of Schneckloth, 320 N.W.2d 535, 536 (Iowa 1982). Indeed, this court has implicitly recognized such an effect in holding that it is a husband's burden to rebut the presumption of his paternity by "a proper and sufficient showing of nonpaternity." See Retzer, supra, 161 A.2d at 471.

Proof of "impotency, complete absence, absence during the period of conception, and presence but with clear proof of the lack of sexual intercourse" are sufficient to rebut the presumption of paternity. Id. at 470; Peters, supra, 84 A.2d at 118-19. Moreover, a blood grouping or HLA test which excludes a putative father as the biological father is sufficient to rebut the presumption and indeed is conclusive evidence of nonpaternity. Retzer, supra, 161 A.2d at 472.

In this case, appellee's prima facie case of her husband's paternity was very strong. Not only did the statutory presumption of appellant's paternity operate, but both parties conceded sexual relations during the presumptive period of conception. See Cutchember v. Payne, supra note 2, 466 A.2d at 1242 ("access remains of critical significance"). Moreover, appellee testified under oath that she engaged in no other sexual relations during the relevant time. Finally, appellee introduced documentary evidence and testimony regarding appellant's six year history of representations of his paternity of N. and treatment of N. as his child. The statutory presumption of paternity clearly was not the only, nor even the decisive factor in the trial court's determination of paternity.

To rebut appellee's very strong prima facie case, appellant made two allegations. First, he alleged that N. did not resemble him. The trial court implicitly, and properly, refused to consider this evidence. Appellant's naked assertion of non-resemblance, in the absence of any proffer of "striking or peculiar non-resemblance," could not properly be used as evidence to rebut paternity. Hassler v. District of Columbia, 122 A.2d 827, 829 (D.C.), rev'd on other grounds, 99 U.S.App.D.C. 188, 238 F.2d 264 (1956); cf. Thomas v. United States, 74 U.S.App.D.C. 167, 172, 121 F.2d 905, 910 (1941) ("fact of resemblance can have no evidentiary value unless there appear in the child physical characteristics peculiar to the father and unless the resemblance is so striking as to leave no reasonable doubt as to its existence").

Second, appellant asserted that his wife confessed to an adulterous, one-night affair some time around the period of conception. Appellant stated that in December, 1978, his wife indicated to him that the father of the child she was carrying was a man with whom she had traveled to North Carolina one weekend. To rebut appellant's allegation, appellee testified in detail to the date and events of the weekend in question. She denied appellant's allegation of adultery and her so-called confession to it shortly thereafter. She offered to call as a witness the woman with whom she had traveled to corroborate her story.³

The trial court explicitly discredited the husband's allegation:

The Court does not credit [appellant's] testimony that [appellee] reported her pregnancy on December 4, 1978, confessing that it resulted from an out-of-town adulterous one-night stand with another man, less than a week earlier.

Since the trial court is in the...